Wednesday, March 31, 2004

Still Not Insane

A doctor testified today in the case of a mother stoning to death her three sons. AP story here. Still, it doesn't sound like it adds up to legal insanity. Here is an excerpt from the story:

Dr. Park Dietz said Deanna Laney (search) believed God ordered her to kill her children last Mother's Day weekend. "She struggled over whether to obey God or to selfishly keep her children," Dietz testified.

Because she struggled with the decision, the prosecutor can argue that she knew killing her sons was wrong. This will be an obstacle for the defense to overcome, and I bet the jury finds her guilty.

The Zen of Id.

If a footnote has two citations to the same source at different pages, can the next footnote use just a plain id. to refer to the last page cited, or must it include a page number regardless because the previous footnote did not contain only one page number citation? I will meditate on this.

Mixed Feelings

The San Francisco Giants Pacbell Park (yeah, I know it's SBC Park now, but Pacbell still sounds better) has put in WiFi. Reuters story here. That ballpark is amazing: not a bad seat in the house, and you can watch the game (the actual game, not on a TV) while in line for some garlic fries. But installing WiFi, while maybe useful, just seems like another non-baseball distraction that will lure yuppies to the ballpark without providing anything useful for real baseball fans.

Gov't Out of My Gas Tank!

The Supreme Court yesterday unanimously approved border searches that involve dismantling a car's gas tank to search for contraband, the AP reports here. The case is United States v. Flores-Montano.

Customs inspectors conducted an inspection of Defendant's station wagon, referred it to a secondary area for further inspection, then took out the gas tank. They found 37 kilograms of marijuana. The process took about 25 minutes. This case follows from cases that hold the government has almost plenary power to search at the international border. SeeUnited States v. Ramsey, 431 U.S. 606 (1977). United States v. Montoya de Hernandez, 473 U. S. 531 (1985) held that intrusive searches of a person must have reasonable suspicion, but the Court yesterday declined to extend that reasoning to vehicles, as the district court and circuit court did.

Justice Rehnquist writing for the majority noted that "[w]hile it may be true that some searches of property are so destructive as to require a different result, this was not one of them," so it sounds like customs cannot destroy one's property, but may only search it. Justice Breyer concurred, noting that cutoms keeps records of reasons for searches, thus minimizing the potential for abuse.

Follow the Money

Reuters reports that industry is targeting file-sharers in Europe now in an effort to combat piracy. The problem is that these individuals are not pirates! Kazaa and similar services are distributing copyrighted works, and making a tidy profit while they're at it. Essentially, they are making money when they should not be.

I know that Kazaa cannot be shut down as of yet through the U.S. courts because the Grokster case is still being appealed, but why is there no international consensus to shut down the service using international law? I cannot locate any express provisions relating to contributory or vicarious liability in the Berne Convention, but anglo-american common law principles (or other similar concepts) could probably be applied to such a plain case of profiting from illegal activity.

Monday, March 29, 2004

The All-White Jury

Interesting case due for argument before the Supreme Court about how easy it should be for a judge to question a lawyer about use of peremptory challenges. Story here, via CrimLaw. The case comes up in response to the conviction of a black man by an all-white jury when three potential black jurors were dismissed by the prosecutor using peremptory challenges. Normally, an attorney doesn't have to articulate a reason for using a peremptory, but the other side can raise a challenge if there is suspicion of an improper purpose being used to kick jurors off (in California, a Wheeler challenge, after People v. Wheeler, 22 Cal. 3d 258 (1978)). The issue is over how much of a suspicion is needed before a judge may question a prosecutor (or potentially a defense attorney) about his or her use of peremptories.

Seemingly Defenseless

The AP reports here that a woman in Texas was charged with murder for killing her three sons by stoning. She claims to have been delusional and overcome by "God's voice telling her to kill her children." The defense is going for insanity, but the prosecution thinks otherwise. It looks likely that the prosecution will prevail.

Something I certainly didn't know about the insanity defense before law school is that being commanded by voices is not even close to legal insanity. Texas law provides a standard pretty close to the famous M'Naughten standard, minus the part about not knowing what one is doing. Section 8.01 of the Texas Penal Code reads: "It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." Regardless of the perceived consequences, or what is compelling the actions, the question is whether the woman knew her actions were wrong. There is some ambiguity about whether this means legally or morally wrong, but it can probably be satisfied if the prosecution can show that she knew killing was morally condemned by society, even if not by what she perceived as God, in this particular instance. Plus it's Texas.

More Partial-Birth

Visits From on High?

I see the Centrist may have had a visit from someone who works at the SCOTUS. Ah, Sitemeter! I myself have a few visits from someone at fedcourts.gov. So by chance anyone from our federal court system (judges, clerks, janitors) is reading, and you do not blog yourself, head on over to de novo and check out their symposia: a great way to add to the blogosphere without the time commitment of setting up a full-on blog.

Sunday, March 28, 2004

The Fastness

NASA reports here an experimental jet achieved a velocity of over seven times the speed of sound. This could mean great things for affordable space travel; bodies seeking to leave Earth must achieve escape velocity. Rad.

My Bad

As some helpful commenters pointed out, the Unborn Victims of Violence Act isn't the constitutional catastrophe I made it out to be: it only applies to things that are already federal crimes, so the power to create it is already there. Compare Unborn Victims Act with Partial Birth Abortion Ban (beginning with "[a]ny physician who, in or affecting interstate or foreign commerce" (emphasis added)).

Saturday, March 27, 2004

More on Religion

The war on terror is only a religious war if President Bush permits himself to characterize us as a people unified by a single religion. We are not -- we are a tolerant people united by a passionate devotion to the Pledge's 'liberty for all.'"

So "under God" helps make the war on terror a "holy war"? Some may rightly oppose it then? This seems like mixing a partisan legal argument with anti-Bush sentiment and throwing in an appeal to provoking terrorists. Uncool.

Secularism v. Atheism

Honestly, I don't know how Newdow should come out, but I think we should be careful to avoid promoting atheism when we really should be promoting secularism. The Establishment Clause should, by its plain meaning, prevent the government from installing a state religion. But it is a mistake to believe that this involves squashing all things "religious," because it would be just as wrong for the state to say "there is no God" as to say "believe in Jesus." This would be an Establishment, not just an impingement on free exercise.

That said, I don't know where "under God" falls, but I think it is hasty to take a view like Marci Hamilton does here: "The preference for 'under God' cannot be separated from the desire to suppress conflicting beliefs." Schools teach many things that are directly contrary to certain religious teachings: science, some sex education courses, paleontology, etc. They are allowed because they are secular; they are based on scientific or sociologic thinking. Michael Newdow, on the other hand, hates the idea of God. He doesn't want to be tolerated, he wants to squash the idea of a deity, and likely anything remotely related to it, from government. Even benign, rote oaths to a flag he claims as "indoctrinating" his daughter. But how far may omissions go before it is hostile to the underlying belief?

Again, I don't know how Newdow should come out, but if we can't even identify the religion being established with the words "under God," then I question those who are quick to call this a move toward theocracy.

Friday, March 26, 2004

Early Defeat for the Constitution

Brian over at RFTR links to this NY Times story about the Unborn Victims of Violence Act, noting that "[t]his is a big victory for Pro-Lifers." No doubt, but it is a big loss for enumerated powers unless a court strikes it down. Can anybody think of an Article I power a later amendment that Congress could have used to enact this?

Points About Chilled Speech

Craig at cka3n comments on my earlier post about a mandatory .xxx domain here, noting that some speech of moderate pornographers may be chilled by being associated with a stigmatized domain suffix. He also notes that the Miller test as a community standards test may be hard to apply to the internet. These are excellent points, but I think .xxx is salvageable.

I imagine, as I posited earlier, that may hardcore sites may voluntarily take up a .xxx label; a portion of the adult film industry, after all, embraced the X rating, and took it even further in self-proclaiming their films as harder- than-hardcore "XXX" films. Also, their customers in the privacy of their own homes would likely not be deterred by this label. As far as stigmatization of moderate pornographers, perhaps an intermediate domain, like .adult, may be desirable for those who do not voluntarily sign on to a .xxx suffix. Even moderate pornographers would probably agree that children and unwilling adults may be harmed/offended by the material they post, and would not object as long as willing adults could still easily find their sites. I don't see much of a chilling harm here.

The Miller test may indeed be difficult to apply, but the standard is used to completely restrict speech, not just channel it, so I think a non-community standard could follow from Miller without being too subjective to work. For instance, Congress could specifically enumerate that sites that feature things like penetration, oral sex, ejaculation, or other such material be assigned a .xxx suffix (or .adult if we are worried about stigma). This would be fairly easy to apply, and even though the though cases are always on the margin, administering a national standard using Miller-like criteria seems possible, especially when the only "penalty" would be changing domain suffixes to something like .adult.

Things like classical art are already routinely judged by society, and the danger of losing desirable material for fear of a .adult label seems remote. If we leave the "though calls" the benefit of a .com or other suffix, a very large portion of adult material will be channeled into easily filtered suffixes.

Friday Advice

Being Friday, of course my thoughts turn to criminal procedure. So if you are arrested today (or were arrested late yesterday), you could rot in a holding tank until Monday without being arraigned. Corollary: don't get arrested before a three-day weekend.

Tactical Error

I pitched my post below about internet domain suffixes for porn to Professor Volokh in a shameless attempt to get a link. However, I didn't receive my usual prompt "sorry, swamped" email reply. On further thought, perhaps using "Porn Domain" as an email subject line is not the best way to pass a spam filter.

Thursday, March 25, 2004

Give Him a Break

PG links to this story of a man who confessed to murdering a woman who was carrying his child. The death penalty is theoretically still on the table, but I hope the authorities don't seek it. Encouraging killers to repent and come forward is good, and life in prison is punishment enough. Further, it would be odd to give killers who withhold information the benefit of a mitigated sentence, while punishing with death those who come forward willingly.

New Domain for Porn

The AP reports here that some groups are planning to sponsor new domain suffixes, .mobi and .xxx, for mobile technology and porn respectively. But what about compelling porn sites to adopt a .xxx suffix? My instinct is that this is both desirable and legal under the First Amendment. It would be desirable because it would allow people to more easily filter porn from their children at home, and could stop porn from popping up on internet searches when people aren't seeking it. It would also lessen some of the speech restriction concerns with filtering software used by libraries that is both overinclusive and underinclusive in the amount of material it identifies as porn.

This shouldn't violate the First Amendment because although it is a content-based restriction, it wouldn't restrict speech, just channel it into a certain suffix so people could identify it more easily. Obscenity law already identifies speech that may be restricted through the Miller v. California test, and that standard could be applied to decide which sites must be under a .xxx suffix. If access to certain speech may be restricted, it follows that the lesser restriction of forcing a domain suffix should be allowed.

This standard does not seem hard to impliment. Many web sites would probably voluntarily switch suffixes, and the few that do not could be dealt with through proper administration. Congress should have the power to enact such regulations through its commerce power, since all internet traffic could involve interstate activity, and the vast majority of porn sites are for-profit.

The biggest problem I see is that some sites, notably Playboy, which are not obscene may still warrant a classification that allows easier filtering. Perhaps a domain suffix like .adult could handle mere nudity without violating the First Amendment, but this is a little stickier since this speech protected (at least as to adults).

10 Things You Can't Do To Your Genitals in Georgia

The AP reporta here that one house of the Georgia legislature has banned genital piercings for women. The ban was included in a bill that outlawed female genital mutilation generally. This seems like an unnecessary restriction on something consenting adults may safely engage in. Let's all hope the Senate (which already approved the bill without the piercing amendment) rejects this particular restriction.

[UPDATE: Jeremy Blachman has a post here, and is likely go generate more discussion.]

Wednesday, March 24, 2004

Scalia Paradox

Justice Scalia has recused himself from Newdow because of some remarks he made about the lower court's decision, but will not recuse himself from the upcoming case involving his hunting buddy Dick Cheney. In one case we have the possiblity of impartiality because of a Justice's own feelings about the actual issue presented, and in another we have the possibility of impartiality because of a relationship that has nothing to do with the merits. Instinctively, I think the second situation would warrant recusal before the first, but here we have the opposite result. Personally, I don't think Scalia was obligated to recuse himself in either case, and his willingness to recuse in one case should cut in favor of his impartiality (i.e., he knows his own mind better than we do, and recuses himself when there is doubt). Still, the seeming inconsistency should be noted.

Why Are Humans Smart? Smaller Jaws?

A fascinating new study hypothesizes that humans' brains may have been able to grow larger because of a genetic mutation that made our jaws smaller. Story here. With smaller jaws, and fewer muscles linking them to our skull, the cranium may have been able to grow larger. Nifty stuff.

"Welcome to the Blogosphere, Clarke"

Blogs for Bush has the dirt on FreeRepublic uncovering a Washington Post article from January 23, 1999 (at A2) where Richard Clarke claims there was a link between Saddam and Usama bin Laden. Thanks to The Black Republican for the pointer.

The Passion of the Brian

Finally, some real news! Reuters reports that Monty Python's Life of Brian will be re-released in theaters for its 25th anniversary, inspired partly by the success of Gibson's The Passion of the Christ. Awesomeness.

The Pledge Ruined My Life!

No, it didn't. I'm no Establishment Clause scholar, but I know this: I never felt alienated by saying "under God" in the Pledge of Allegiance. I'm no fan of organized religion, partly because of how some churches feel non-believers are going to hell, and aren't shy about telling non-believers this. So I'm coming at this from the perspective of someone who has felt aliented by people pushing their religion (mostly kids who didn't know better, and adults who didn't mean it, but alienated nonetheless).

The Pledge, however, was something recited by rote in school, hand over the heart, and all-inclusive. I never felt I was pledging allegiance to God, or a god, or someone else's God. I just said the pledge, and saluted the flag. I was more concerned with why the United States was "invisible."

I don't know how Michael Newdow feels about "under God," but I do think he is misguided. This quote from the AP story convinced me: "Michael Newdow, the father who filed the lawsuit, compared the controversy to the issue of segregation in schools, which the Supreme Court took up 50 years ago in Brown v. Board of Education." Again, I don't know how this case should come out, but I know how I want it to come out: I want Newdow to lose in his theological crusade for atheism, and I want him to realize that this is no Brown v. Board.

Tuesday, March 23, 2004

1000!

My Own Lay Opinion

I haven't been following the Kobe Bryant news as much as others, but this AP story (gotta love the AP!) is interesting: is having a rape victim testify about past sexual encounters always bad? The story cites the allarming figure that 84% of sexual assault victims do not report the crime, making a compelling case against admitting prior sexual experience testimony to lessen the embarassment of coming forward. However, even though false accusations are tough to pinpoint, even if it is as low as 2%, that is two out of 100 men accused of a serious felony who did not commit the crime, which makes a compelling case for protecting a defendant's rights in rape cases since the emotions (and politics) run especially high.

Even if there is a good case for discovery on past sexual history, especially to prove bias (always relevant), and a possible alternate source for injuries claimed to have been caused during a specific sexual encounter (certainly also relevant), I don't see the need to bring these out through testimony, especially cross examined testimony before trial. In my lay opinion, unless the judge is seriously looking for an excuse to drop this case before it goes to trial, this step is unnecessary. Discovery could produce the desired information, it would be kept private, and the evidentiary ruling could be made before trial on admissibility questions.

1977 and Counting

The "Shell Shock" Defense

The AP reports here that a lawyer defending a soldier accused of killing a friend is considering using post-traumatic stress disorder as a defense. The soldier is one of a group that had just returned from Iraq. The lawyer describes their experiences:

They were one of the first units into Baghdad. All along the way, they were under fire. They were sleeping in their armored vehicles for fear they were going to get shot dead. They had people around them who were getting shot.

I have as much sympathy as anyone for what these guys went through in Iraq, but I doubt that this defense can or should hold up if used at trial. This is clearly not an issue of insanity, and diminished capacity has been a disfavored defense for some time. It does not really matter which court the trial is held in: Georgia only recognizes this defense if the person did not have the capacity to distinguish right from wrong, Ga. Code Ann. § 16-3-2, and federal law does not recognize mental disease or defect other than insanity, 18 U.S.C.S. § 17, nor does the UCMJ, 10 U.S.C.S. § 850a (a). Any mitigation of murder to manslaughter for heat of passion would be a factual determination, but it is most likely going to be an objective standard, and it seems unlikely that a reasonable person would have been provoked to stab someone 30 times in this situation (unless there are facts as yet undisclosed).

All in all, I don't see a strong case here, but then again I'm no trial lawyer (yet).

More on Passion

wTunes

Reuters reports here that Wall-Mart has started an online music store that will sell songs for $0.88, severely undercutting Napster's and iTunes' $0.99 per song. I see this as a good thing: if the cost of music is lowered to a reasonable amount though capitalism, then there is less of a need to revise copyright law in this area. Interesting.

The French Get it Right...Maybe

The AP reports that Playboy Enterprises, Inc. is suing a french women's magazine for reproducing some of its images before the magazine was released in France. Thanks to PG for the pointer. Under American law, this would be a tough case. The best defense looks like fair use (though I don't know if there is a similar defense under french law). The market impact looks speculative, but some market harm could probably be proven, especially since the actual Playboy magazine was not due out for weeks. Also, the use looks largely commercial, even though it is described as a "press review" (though details are sketchy), the material is unpublished (in France), and takes 100% of a few pictures. Tough call.

The interesting part, however, is the claim by the french magazine "that using images from other publications in press reviews is common practice among newspapers and magazines . . . ." I imagine a "common practice" among french publications would be ruled legal under french law, or at least it should be. If so, Playboy could still seek a remedy under international intellecual property law: the Berne Convention treaty. Article 10 deals with fair uses:

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Without more details, it is difficult to see if this applies, but the fair use as to non-text materials in part (2) seems limited to teaching, and even if part (1) applies it is arguable that the magazine had not yet "been lawfully made available to the public." The finer points of international IP are beyond me, and I do not know to what extent France has implemented Berne (although I imagine that since they were signatories in 1887 they have adopted it in full), so this will be an interesting case.

To end an already long and rambling post, I hope that Playboy loses, especially if it must resort to international IP law. If this is indeed a common industry practice, then if French law rules it illegal, then perhaps American practices that do not accord with international law (i.e., parody) may be in danger, especially if the content industries start throwing their weight around more in Congress.

Monday, March 22, 2004

Idiot Sees Something Unpleasant, Sues Google

Apparently this is true, as Boing Boing has linked to it, and the news site itself looks legitimate. Some guy is suing Google for libel because a search turned up false information about his company, specifically that it has been "disciplined for gross negligence," among other things. The allegedly libelous matter was this page from the California Board of Accountancy.

As a remedy, he "wants a court order to prevent Google from using PageRank," the system that turns up acutual accurate results when people search for things. Thanks to Nerdlaw.org for the pointer.

Presidential Blogs

Yep, That's Berkeley

I have very little knowledge about this particular speaker, but here is a post by Daniel Pipes, a pro-Isreal speaker, about his speech at Berkeley on February 10th. The post states that his speech was interrupted by hecklers and the UC Police did virtually nothing to stop them. Berkeley chancellor Robert M. Berdahl sent a letter in response to a protest about how the University handled his talk (printed on his post, and by David Bernstein here).

I have some feelings about the Israeli-Palestinian conflict, but my position is basically this: both sides have strong proponents, and should be heard on the issue. But in Berkeley, many people without any ties to the region have taken the pro-Palestinian side in this debate, largely (from my observations) because it is a fashionable far left-wing cause. Further, campus protests by pro-Palestinian groups when I was there were disruptive to the campus, mean-spirited, and sometimes dangerous. The best example was the time I was locked in Wheeler Hall. Protesters chained all the doors but one, forcing students through a "checkpoint" of their choosing. I was already inside when they did this. Now, the words "fire safety" don't have much sting because fires are so rare, but the point is that these protesters didn't mind taking this risk with my life to make their point. I find that offensive.

Protests at Berkeley generally are a joke: participants feel free speech is for left-wing causes only (case in point, protesters from the city forcing the cancellation of a speech a few years ago by former Israeli prime minister Binyamin Netanyahu), and usually involve an uninformed group of people and a non-local cause (e.g., simultaneously protesting cars and repression in Ecuador). The incident with Pipes is just one more example of how the spirit of Berkeley in the '60s has been lost.

There's Privacy, and Then There's Privacy

The AP reports here that the Department of Justice is seeking to have new telecommunications technologies allow for legal wire tapping when necessary for law enforcement purposes. Internet companies are resisting the change, however, noting that the internet was built as a "free, anonymous and creative place." The controversy is over telephony services that operate over the internet, basically converting a normal telephone conversation into an data stream that cannot be monitored.

Personally, I'm conflicted about this push. On one hand, we have the real needs of law enforcement:

"These problems are real, not hypothetical, and their impact on the ability of ... law enforcement to protect the public is growing with each passing day," according to a petition sent to the Federal Communications Commission last week signed by Deputy Assistant Attorney General John G. Malcolm and colleagues from the FBI and DEA.

On the other hand is the slippery slope toward full internet regulation:

"If the FBI had this power all along, would we even have the Internet today?" said Lee Tien, senior staff attorney at the Electronic Frontier Foundation.

I think a wait-and-see approach will be best. Technology itself may provide the remedy and allow these conversations to be tapped when legal. Also, there are certainly plenty of ways for criminals to communicate over the internet without using voice, and I don't believe law enforcement can currently tap all of them. Jumping the gun for one kind of technology could lead to further regulation of internet communication in the future, and once we start down that road perhaps the internet as we know it will disappear. Law enforcement can afford this one handicap for now, and the law can tackle it if no solution presents itself.

Repeal Amendment XVII

I'm only a few chapters into Randy Barnett's Restoring the Lost Constitution, and he has already made some good points about how the Founders distrusted majority rule, and took great pains to place non-majoritarian checks on the majority. One of these was the Senate--elected by state legislatures, not through direct democracy, and given six-year terms. A point not explicitly made, but that I nonetheless can't help wondering about, is whether the Seventeenth Amendment was a good idea or a bad idea. If Congress could be infused with an "elite" house, free from direct majoritarian influence, couldn't this accomplish some of the good that we want the judiciary to accomplish now?

[UPDATE: Chris Geidner wrote some thoughts on the Seventeenth Amendment back in 2001 here, and has written a good comment to this post. Check them out.]

Dawn of the Dead?

It looks like Dawn of the Dead did well this last weekend, and I have to admit I didn't expect it. Even Rotten Tomatoes has a fairly favorable review. The original was good for its cheese factor, and I tend to prefer my zombies lumbering, stupid and slow, yet deadly nonetheless (mostly because the protagonists are cornered in some location). This version of Dawn seems to rip off borrow the 28 Days Later model of running lunatic zombies, which was good in that film, but it remains to be seen if it will define the role of the zombie from here on out.

Friday, March 19, 2004

Dangerous World Made War

This AP story, headline "French Official: War Made World Dangerous," shows France has it exactly backwards. I'll leave the serious poliblogging to others, but this just irks me. This quote seems particularly baseless: "'Terrorism didn't exist in Iraq before,' de Villepin said. 'Today, it is one of the world's principal sources of world terrorism.'" First, what "world" terrorism has been caused by Iraq? I doubt many Iraqis have had much time to take the fight abroad. Second, what does this French guy call what Sadaam did? When a dictator slaughters thousands it is not terrorism, but far fewer deaths from rogue bombers (even though still terrible) makes this situation worse than before? This is an odd distinction to make.

Great Police Work, Wrong Charge

The AP reports here that the police in Malcolm, Nebraska may have prevented another Columbine. Josh Magee was arrested after the police found a bolt-action rifle, several rounds of ammunition, small bottles of propane and rigged containers of a petroleum-based propellent in his trunk. Good work.

However, I'm not sure about the charges. The AP also reports that "Magee was arrested Tuesday in the parking lot of Malcolm High School after a staff member saw him swigging liquor from a flask and putting on a black overcoat. He was charged Wednesday with attempted murder." This seems wrong. Even though it looks like he planned to carry out a shooting, or cause destruction of some sort, he wasn't nearly far enough along in the process to be charged with attempt. Although when a common law attempt occurs is ambiguous, and Nebraska may have different law on this issue, just performing the first act in a chain that may lead to a substantive crime should not constitute an attempt.

Further, there story contains no allegations that Magee planned to actually kill anyone. It notes that he "was also found with a note saying he wanted to injure everyone at the school except for three friends." Attempt requires the intent to kill, and I don't know that this can be inferred from an intent to cause even great bodily harm.

Again, great police work, but I don't know that this was an attempted first-degree murder.

Thursday, March 18, 2004

Not Again...

The Full Faith & Credit Clause (FFCC) issues on same-sex marriage are still being discussed, and in my view this should be a done deal: the FFCC should not require a state to recognize another state's same-sex marriages, except perhaps if there is a court judgment in a divorce proceeding or a like matter involving judicial decisions, the paradigmatic FFCC issue. This post over at Begging to Differ takes issue with a New York Times article that says FFCC would not apply. Maybe some people can point to different precedent, but I think the article generally has it right, though maybe relying too much on miscegenation laws. Here's my take:

First, we have to presume that this situation would only arise when a state refuses to recognize a same-sex couple's out-of-state marriage, and that the federal constitution does not require a state to provide same-sex marriages.

Second, the FFCC has not required a state to recognize a marriage between ineligible parties married in another state, but the problem is that most of these cases are older than dirt and sometimes racist. Only differences in procedure must be accorded marriage status in another state. See Loughran v. Loughran, 292 U.S. 216, 223 (1934) ("Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the State where entered into, be recognized as valid in every other jurisdiction.); State v. Tutty, 41 F. 753 (C.C.S.D. Ga. 1890) (noting the difference between procedural and substantive marriage differences, and holding that a state need not recognize an interracial marriage). The FFCC is about judgments, not acts given legal force in another state, so should not apply to same-sex marriages.

Third, I have not likely convinced those who say that this restriction is discrimination, and this should not be allowed, even if there is precedent (which involves more odious discrimination in some cases). But this ignores the central issue: this is about giving effect to another states laws, not about equality. Since we must assume that a state need not grant same-sex marriages under any other clause (since that would render this whole discussion moot), saying that this is discriminating bootstraps the equality issue into the FFCC issue. It would essentially carve out an exception for forcing a state to follow another state's substantive law when there is no court judgment to enforce. This would be anomalous.

Finally, just to explain why forcing a state to follow another state's law would be bad policy generally, think of a state being forced to enforce a contract of another state that contains unconscionable penalties. This could lead to forum shopping when people want to enter into certain kinds of contracts, even though they know another state will need to adjudicate the merits later. This is not the kind of thing the FFCC was designed to do.

In sum, those who feel that same-sex marriage must be allowed are projecting that view onto the FFCC, even if that analysis belongs elsewhere. Perhaps people know cases I don't, but I think the FFCC does not, and should not, require a state to recognize a same-sex marriage if it doesn't want to.

Scalia's Refusal

Justice Scalia has refused to recuse himself in the upcoming case involving Cheney. His letter here, Fox News story here, and Lithwick's thoughts here. Personally, I don't think Scalia will behave in an un-Scalia-like fashion when the case comes down, and I question the Sierra Club's motivations for filing the motion more than Scalia's alleged partiality. Does anyone think this was about Scalia's integrity rather than the Sierra Club thinking Scalia would vote against them?

Fantasy Baseball

As a last-ditch effort to get people for my league, if anyone wants to join a Yahoo! private free fantasy baseball league, the league ID# is 39608, password: torts. I'm going to set the draft tomorrow, but may wait an extra day if some people join.

Wednesday, March 17, 2004

Jurisdiction Stripping

Apparently, a bill, HR 3920, was introduced in Congress recently:

The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--
(1) if that judgment is handed down after the date of the enactment of this Act; and
(2) to the extent that judgment concerns the constitutionality of an Act of Congress.

Volokh posts here on why he thinks the bill would not be effective, and Dahlia Lithwick weighs in here on why this law is "dumb" and unconstitutional. At first, I agreed fully with the part about it being unconstitutional, but then I read this portion of the bill:

This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.

The portion of Article III referred to must be the "exceptions and regulations clause, stating:

In all other cases . . . the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make.

The Court in Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) hinted that this power was plenary, though is not completely difinitive. Henry Hart, for example, would argue that Congress may not take away the the essential function of the Supreme Court. But if we were to read McCardle for "all it might be worth," then perhaps this statute is constitutional. What Congress would be doing is making two laws in one, despite perhaps crude language in drafting. First, it would re-enact the law that was struck down (or "reverse" the Supreme Court decision). Second, it would preclude further judicial review in the Supreme Court over the constitutionality of its statute. These together could presumably come under the exceptions and regulations of Article III, if we were to read McCardle that way.

The statute is currently vague about how this would apply to lower federal courts, who would presumably still be free to engage in "activist decision-making" even without Supreme Court review, but it doesn't take much imagination to draft a statute that does away with this problem as well. As unlikely as it may be, this statute could make for an interesting jurisdictional battleground, and right now all good Fed Courts junkies can enjoy the theoretical fight.

Federal Courts are Swamped

This post from TalkLeft notes that the District Courts are being swamped by Bush administration "get-tough-on-crime" policies. But 252,962 civil cases were brought in 2003, 61,156 of those being diversity cases. Data from here. Why not eliminate some of those to make room for actually enforcing federal law?

Another Petition

Congress Lays Dormant on Commerce

This opinion piece by George Pieler over at Fox News posits that states may soon begin taxing internet uses, up to and including email, and that Congress should step in to stop any potentially unconstitutional state actions. This stirred up memories of Con Law I's section on the Dormant Commerce Clause jurisprudence: a state may not discriminate against out of staters, either facially or by a purpose or effect, when setting limits on commerce. So even in the face of congressional silence a state may not protect its home economy at the expense of other states. Even neutral laws may be preempted by Congress if it so chooses, and it is regulating interstate commerce.

But many internet uses could fall solely within intrastate commerce, such as regulating local ISPs. In light of U.S. v. Lopez and U.S. v. Morrison, certainly some uses would be taxable, and would not implicate the concerns the Commerce Clause is meant to serve, and could not be (or at least should not be able to be) preempted by Congress. I am against undue internet regulation, especially when it would require extensive infrastructure, and it is good to be aware of the possible uses of the constitutional sledgehammer in this area.

So much for the euro...

The latest reports out of Spain indicate that socialist prime minister elect Zapatero is contemplating
withdrawl from the euro zone as a follow-up to the anticipated Spanish withdrawl from Iraq. An
early version of the new peseta has been leaked to the press.

Tuesday, March 16, 2004

Clickthevote

Check out Click The Vote.org, an online petition that "calls for an equitable, balanced and reasonable system for legal file sharing that promotes learning and rewards creators." Thanks to Boing Boing for the pointer.

What Rights Do I Have . . .

. . . under copyright? This is a question that folks don't really think about until its too late. Yesterday, a professor visited the law review office because someone wanted to republish one of his articles, and he was trying to find out what kind of permission they needed to get. I don't blame him for not knowing (I didn't know myself until yesterday), and it all worked out in the end, but what about people who sign away rights to an article, or anything else they create, without knowing what they have signed away? This post over at Crooked Timber seems to involve granting rights after publication to a journal, which seems like a poor strategy on the journal's part, but the confusion still brings up the same basic point: people may often not pay attention to the rights they retain in their works. Eugene Volokh has a section in Academic Legal Writing about negotiating copyright agreements that would-be authors (especially students) would do well to read. In the end, it's about making sure people know their rights, and don't put themselves in the position of infringing rights in works they created.

Monday, March 15, 2004

See supra

Bad News for Popcorn Lovers

In an AP article short on details (provided here), a present or former factory worker who claimed his lungs were ruined by flavored oils won a judgment of $20 million dollars in compensatory damages alone. Not too much to quarrel with if he indeed suffered that much damage, but this could signal the first of several dump trucks full of money being delivered to plaintiffs: 29 more plaintiffs are waiting, and if I remember my civil procedure, collateral estoppel prevents the complany from relitigating the finding of liability (presuming the plaintiffs can at least show causation).

Right Message, Wrong Method

Two Unitarian Universalist ministers were chared for marrying same-sex couples in New York. AP story here. I don't know what this church's policy is normally on same-sex marriages, nor whether it has performed the ceremony before (even without legal significance), but if this is the first time, then I think it was a great gesture of support for same-sex couples. However, the church should limit itself to the religious ceremony, and not try to claim civil significance, which would be perfectly legal. I think these two ministers are doing a disservice by bringing the heat down on themselves like this instead of just performing the ceremonies, which should have great significance to the couples involved. Instead of performing this good, they chose to make a political statement, and in the process are not able to do as much good as they could have.

Sunday, March 14, 2004

A Blog De Novo

You've surely noticed--or, to my dismay, haven't noticed--my infrequent blogging here, due in large part to my nearly full-time job bringing to fruition a new blog with some of the other former En Bancers.

I'm sad to say that job is finished, but I'm quite delighted to say it's replacement--blogging at De Novo-- will be a more than adequate.

Be sure not to miss our launch Symposium on Legal Education, going on many days this week, with guest contributors you're sure to like.

Musings on the Not-So-Napster

Pic via Down Hill Battle. The funny part is that Napster was never really about supporting artists either: it was about allowing users to infringe the artists' and labels' copyrights to build market share, then making money. Then Napster planned to start charging its users, ironically expecting their copyrights to be respected. The District Court in the Napster case noted as much: "Defendant eventually plans to 'monetize' its user base. Potential revenue sources include targeted email; advertising; commissions from links to commercial websites; and direct marketing of CDs, Napster products, and CD burners and rippers. Defendant also may begin to charge fees for a premium or commercial version of its software. The existence of a large user base that increases daily and can be 'monetized' makes Napster, Inc. a potentially attractive acquisition for larger, more established firms. A & M Records v. Napster, 114 F. Supp. 2d 896, 902 (N.D. Cal. 2000) (citations omitted).

This potential business model was able to raise enough money to hire some top-notch lawyers to defend the business model, but where were artists in this scheme? Selling CDs is listed as a potential revenue source, but doesn't seem compatible with Napster's business model. In the free music movement, Napster is all things to all people, but in reality it was just another business. The utopia wasn't taken away from us; it has yet to be created.

Saturday, March 13, 2004

Pound on Saturday

Today, only a brief word about the use of Imigism in Pound's poetry. The idea is captured in Ernest Fenollosa's thoughts on Chinese poetry, film, and language:

In "things" he saw "cross-sections cut through actions, snap-shots"; likewise in singe ideograms and single cinema frames. Both exist for the sake of their blended succession, the moving picture, the sentence, the poetic line.

HUGH KENNER, THE POUND ERA 289 (1971). With this in mind, Pound's In a Station of the Metro:

The apparition of these faces in the crowd;
Petals on a wet, black bough.

Judge Allows Subpoena of Abortion Records

Contrary to other rulings, the University of Michigan will be forced to disclose its abortion records to the DOJ with personal information redacted and without public disclosure of the information. Ann Arbor News story here; thanks to How Appealing for the pointer.

This seems like the right result, and I feel that the other courts got it wrong when they denied the discovery of these records. First, if the challengers of the partial-birth abortion ban were going to use records as part of their claim, then the DOJ should have been allowed discovery of similar records as a matter of course. Second, if the challengers were not going to use records, and instead rely on expert testimony, then I see no reason why the DOJ should not be allowed to rebut that testimony with empirical data, heavily redacted to preserve individuals' privacy. The alternative is to have a battle of the experts in court (and even then shouldn't the underlying data be made available to the other side per FRCP 26(a)(2)?).

[UPDATE: This case may involve more of an issue than I gave it at first glance. The partial-birth abortion ban included a congrssional finding that the procedure was never necessary to protect the health of the mother, but then whose burden is it to prove this in light of Stenberg v. Carhart's pronouncement that a health exception is crucial? Again, this should counsel in favor of government discovery of records to prove this, but may negate my initial feeling that the law's challengers needed to prove that the procedure was necessary.]

Students clearly hate God, not minorities

On January 9, 2004, apparently some students from Harvey Mudd College (HMC), aided and abetted by other drunken and misguided fools, pilfered a "student work of art" from Pomona College, transported it to HMC, and set it ablaze.

The fact that the so-called art happened to be a cross has set off an inordinate degree of furor in the inland empire, as intimated by HMC alum Sam Mikes. The situation was apparently so dire that it merited a letter to alumni (or at least donor-alumni).

Burning the cross has been characterized by HMC President Jon Strauss as a "grossly ignorant" and "inappropriate act." For a college that features ritualized crucifictions and whimsical tarring and featherings of select freshmen, this seems like a disingenuous characterization. At the same time, it is preposterous to propose to treat these drunkards as though they were christening a branch office of the KKK and idling their pickups looking for victims.

It seems fairly clear to this author that their actions fall into what should be a protected area of speech, "drunken geek speech." If students at Caltech burned a cross, it would likely be interpreted as a test of some new system on the Mars rovers; why must the burning of a cross at HMC be seen as a hate-crime? A quick examination of the HMC campus would reveal that the only people likely to garner any hatred are those who high score the Stat. Mech. midterm, or are dating that really hot chick from Scripps.

Putting any greater symbolism on the actions at HMC is a stretch of the imagination unsupported by the facts of the situation. Tellingly, after the furor over the burned cross arose, the students involved turned themselves in--hardly the work of hate-mongers working to foment their racist revolution.

Gotham City

Thursday, March 11, 2004

Hey You!

I know I have a low-traffic blog, but for what it's worth, I want to encourage those who may be passing through (especially those who don't blog themselves) to comment here, or elsewhere on blogs that offer comments. Don't be afraid to be the first to say something. Good comment threads make for a good blog.

What Is Our Basis of Law?

Excellent post by Eugene Volokh about why religious views should not necessarily be excluded from majoritarian politics just because they "force their opinions on us." I've written some comments on the former En Banc about how moral laws, even ones based on religion, should not be excluded from a rational basis analysis under the Due Process Clause or Equal Protection Clause, and continue to stand by that view. But then the broader question remains of when we should take an issue out of majoritarian politics, religious or not, as violative of other constitutional principles. After all, even though I am not an Establishment Clause scholar, at some point a majoritarian enactment of an entire religion's doctrine as law should certainly violate the Constitution, shouldn't it?

More to my point, interpretations of constitutional provisions like the Equal Protection Clause or the Establishment Clause seem to enshrine moral bases for law in the Constitution: it is not about deciding how to decide, it is deciding what to decide. Why I, and others, may view "judicial activism" in such a bad way is that these force a court to pick a philosophical basis for law: utilatarianism, libertarianism, or some other -ism, and enshrine that into law through this Constitutional vehicle, contrary to other equally valid guiding priciples. Perhaps this is why "original meaning" is appealing: it picks the meaning understood by the writers of a Constitutional provision at the time they consented to be governed by it.

RBG Gets a Pass?

Chris Geidner posted here about an LA Times article regarding Justice Ginsburg's ties to NOW and drawing parallels to Scalia's recent outing with Cheney. Here is a quote:

Then, three paragraphs later, we find out the "medical screening" case had nothing to do with abortion or other such "activist" NOW positions. It was, we are told, a case about "a state's duty to provide medical screening for low-income children." Oh, yeah, and the justices' vote: unanimous.

Ginsburg's actions may not be directly analogous to Scalia's, but I don't think the above point is quite right. First, the case where Scalia is being asked to recuse himself doesn't involve duck hunting, but we are concerned nonetheless. It is the relationship that matters. Second, the reference to the unanimous decision doesn't seem apt. Scalia did go duck hunting, but people are not waiting to see what happens before condemning his actions. When the case is decided, he will probably vote in his usual Scalia way, and will probably have support from other Justices. Are we only concerned about the appearance of impropriety when there is a 5-4 split?

Even though there may be other distinctions that make this un-newsworthy, I think the above points do not help the analysis much.

The Line Between Use and Abuse

Barbara Babcock at Slate has some tough words about Terry v. Ohio, the landmark case that authorized the "stop-and-frisk" of suspects based on a "reasonable suspicion" of criminal activity and a concern for officer safety. Dahlia Lithwick weighed in on the issue a while back on a slightly different note, downplaying the hysteria surrounding the pending Hiibel case by stating the issue simply--is who we are when on the street that private? I responded briefly here.

I think one of Babcock's hypotheticals illustrates the issue and disagreement pretty well:

say during an orange-alert period for terrorist activity, police near an airport, or in a busy urban center, see a dark man looking around furtively, who turns and walks away rapidly. With Terry and Wardlow and Hiibel (if it is decided for the government), the police may run him down andÂwithout suspecting him in particular of anything specificÂdemand his identity and arrest him if he refuses to give it. Is this America?

Indeed, is this America? But what is it that should bother us here: that this law enforcement tool forces us to divulge our identities, or that this tool may be abused by law enforcement? Terry wasn't just a reaction to the violent times Babcock portrayed; it made good intuitive sense. If someone were casing our home or business, do we want the police to intervene based on a reasonable suspicion, or do we want them to wait until a crime (possibly violent) begins? In my mind, Terry is not the problem, nor will Hiibel be the problem if the Justices rule that someone can be compelled to give over their ID.

Abuse of the privilege is the problem, and the question is whether the best remedy is for the courts to preclude a useful law enforcement tool based on an idea of privacy that evolved in the middle of the 20th century. After all, the Fourth Amendment by its very terms says nothing about name or identification, so we are already in the area of prudential constitutional rulemaking. I'm not convinced that this course is necessarily the best, but I do take to heart (as Babcock notes) Justice Douglas'admonishionon about the "powerful hydraulic forces" at work when we mess with the Fourth Amendment, and although there may be a need to counteract particularly invidious applications of the law, Hiibel may not be the best place to do it.

In short, "is this America?" will not be answered this term by this case.

Holy Crap

Invent Me

There should be a word that is the blogospheric equivalent of "neighbor." While I consider my former co-bloggers and a handful of other bloggers to be friends (not merely neighbors) there's a whole sphere of bloggers out there related to me by interests and career position, the members of which I'm likely to "bump into" during my usual navigation of the blogosphere, etc., whether we've ever had a one-on-one exchange or not. Perhaps "blogfellow" is along the right lines, but it sounds wrong. Suggestions?

Originalism and Text

"It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution," Scalia said at a conference Uptown on the merit selection of judges.

"So we now have a constitutional right to abortion, something that had been criminal for 200 years," he said. "We have a constitutional right to homosexual sodomy, something else that had been criminal for 200 years."

These views come as no suprise to anyone remotely familiar with Scalia's jurisprudence, but the second of these statements seems immediately to weaken the first. Perhaps it's true that the Court "has entirely liberated itself from the text of the Constitution," and perhaps it's true that there's no constitutional right to abortion or "homosexual sodomy," but I challenge anyone to find the tenets of originalism or a preference for historical pedigree in the "text of the Constitution." Don't get me wrong--Scalia is often an admirably principled Justice, but I can't take his textualist criticisms too seriously until he admits that our Constitution is largely dependent on extrinsic principles of interpretation, the selection of which requires extra-constitutional and subjective judgements about the nature of jurisprudence and constitutional justice.

A Semi-Complete Poll

A new USA TODAY/CNN/Gallup Poll is up on same-sex marriage, see here. The polls show a rise in the number of people supporting "civil unions" giving "some of the legal rights of married couples." While good, I cannot say anything about the poll's statistical validity or sampling techniques. Further, I find it odd that there is no option to choose giving all legal rights of marriage to same-sex couples without the title of "marriage." In other words, the term "civil union" is synonymous with "fewer rights," even though the news accompanying the poll recognizes that Vermont does not have any legal differences, and some of the proposed Massachusetts civil unions would have done the same. As I feel any constitutional equal protection claim is untennable when there is full legal equality, this is an notable omission.

Monday, March 08, 2004

Call a Blog-terior Decorator

For a fellow with such good intellectual taste, I'm sorry to see Matt Yglesias do something rash like bludgeon his blog with an ugly stick. About 3 out of every 4 commenters over there are verbally vomitting on the new site. Here's my favorite (censored for family viewers):

Libertarian Purity Score

See here. I dunno how this happened, but I got a 55. This translates to: "You are a medium-core libertarian, probably self-consciously so. Your friends probably encourage you to quit talking about your views so much." I rarely talk about my views, or anything else, and when I do it is an embarassment, so this test is obviously wrong. Via, as all good things in life, Will Baude (who is that masked man?).

Waste

Via Tyler Cowen at TVC, linking to this post and this one, some people are pissed that white moves first in chess because they think it is racist.

I write separately to point out that in Go, black moves first and white moves second, but the advantage is balanced out by "komi," a handicap that gives an additional 6.5 points to white (in Japanese rules) at the end of the game. Everyone should play Go since it is obviously committed to racial equality.

Umm . . . a Blog

Sunday, March 07, 2004

Bill: Stay Out of My Email

The AP reports here, following an idea that has been kicked around for a while now, that Bill Gates (among others) are suggesting that users pay to send email, much like we pay to send letters now. The idea is that it will reduce spam by making it prohibitively expensive. This, I propose, is unacceptable.

First, where is this money going to go? Perhaps it could fund some non-profit internet something-or-other, but this is the least of the problems. Second, the costs of the internet are already completely internalized, and privately funded, so why should we voluntarily incur an extra cost on top of the cost we already pay for email? We already pay our ISPs for the ability to use its server to send and receive email and store information. They can effectively police bulk senders if they chose to do so, but right now they do not. Perhaps privately charging bulk senders could be something seen in the future, but simply charging all email users as a matter of course makes no sense.

Finally, as a sheer matter of practicality, imposing a cost on each email sent would seem to require a huge amount of regulation and infrastructure rearrangement. What's to stop a spammer from simply setting up a T3 connection, running linux, and sending mail without running through a traditional ISP? I doubt a receiver-side system would work without massive popular and industry support, and even then would seem to rely on a virtual "stamp" to identify paid-for messages, which could fairly easily be hacked, I imagine. The fist or regulation would have to be tight indeed, and would stifle the internet as we now know it.

Bill Gates must surely be aware of these problems, and is also aware that only law abiding citizens would be affected while wily spammers would continue to circumvent the system. I sense, as most others must, that dollar signs are the real reason behind this, not stopping spam. We should be very vigilent for anyone seeking an inroad to internet regulation, because once attached, it will be hard to maintain the free flow of information we now enjoy. Perhaps spam is the price of this freedom, and one I am willing to pay.

Pound on Saturday (Sunday Edition)

I haven't had as much time this weekend to work on Pound, nor will I next weekend, but I'm going to throw something out there anyway. To continue with a general history, which will be old hat to anyone that has studied Pound, this week I want to offer a general history of the Pisan Cantos (LXXIV-LXXXIV), probably Pound's best known work, the works that got him the 1949 Bollingen Prize, and some of the most impenetrable works of any modern poetry.

Without reaching the substance of the poems, here is some background. Pound was a big supporter of Mussolini, and as the allies invaded Italy during WWII, he delivered his infamous Rome radio broadcasts containing the anti-Semitic statements linked to last week, as well as encouraging the Americans to leave and respect Mussolini's fascist state. He was eventually captured and imprisoned in Pisan POW camp. Originally held in a 6x6 1/2 foot cage. The men, including other prisoners, had orders not to speak to him. Gradually, though, he obtained reading material, and better conditions (he was, after all, in his sixties) including a typewriter. Still, his days were spent in confinement, and his writing included familiar strains of past Cantos, but were also infused with his surroundings, which he in turn infused with his own knowledge set. For instance, "[n]orth and east stretched mountains, one cone-shaped above delicate trees (he named it Taishan, for China's sacred peak) . . . ." Hugh Kenner, The Pound Era 471 (1974).

To be able to know the Pisan Cantos one really needs to know Pound, which is true for most of his work more than for any other 20th century poet.

Never inside the country to raise the standard of living
but always abroad to increase the profits of usurers,
dixit Lenin,
and gun sales lead to more gun sales
they do not clutter the market for gunnery
there is no saturation
Pisa, in the 23rd year of the effort in sight of the tower
and Till was hung yesterday
for murder and rape with trimmings . . .

Canto LXXIV. The general theme of usury and world markets, of no social benefit, to the hanging of a prisoner.

To quickly complete the story, he was eventually transferred to the U.S. and indicted for treason, tried, and found insane. He spent the next twelve years in St. Elizabeths mental hospital in Washington D.C. In response to his indictment, he wrote the following to the Attorney General:

I do not believe that the simple fact of speaking over the radio, wherever placed, can in itself constitute treason. I think that must depend on what is said, and on the motives for speaking.

. . . .

I have not spoken with regard to this war, but in protest against a system which creates one war after another.

Saturday, March 06, 2004

Proving a Negative

U.S. District Judge Phyllis Hamilton denied the government's request for Planned Parenthood to turn over its abortion records to prove that sometimes a "partial birth" abortion is sometimes medically necessary to protect the health of the mother. The AP story is here. Here's a relevant excerpt:

Abortion providers are expected to testify that such abortions can be medically necessary to prevent injury to women.

Federal attorneys want abortion doctors to make their point by referring to the medical files and asked the judge to allow them to review the medical records. The law includes language that the procedure is never necessary to preserve a woman's health.

Perhaps there is a procedural hangup that I am unaware of, but in this day of empirical evidence, why is the burden on the government to prove, without access to any medical records, that partial birth abortion is never necessary to protect the health of the mother? I don't see the privacy issue being an insurmountable obstacle since the patents' information could be easily redacted, leaving only the medical data. It looks like the purpose is just to deny the government the ability to gather empirical evidence, thereby influencing the merits of the case.

Friday, March 05, 2004

Bail

Question: Posted by TChris over at TalkLeft: "[W]hy [does] a system of justice that presumes people innocent and that promises equal treatment under the law nonetheless favor[ ] those who can afford to pay bail while incarcerating the destitute until their cases come to trial[?]"

Answer: Bail is designed to incentivize people showing up for trial, not to incarcerate the poor because we hate them. It must take into account the seriousness of the charge, and the "flight risk," or at least the risk of not being able to find the defendant if he does not show up for trial. The case in the post seemed fairly serious: an "attack" (I cannot find the exact charge) on three 12-year old girls. The fact that the man was homeless means that he probably had fewer ties to a physical location than a more affluent citizen does. The realities of the situation fulfill the requirements of bail, and I think an abstract attack on bail in general is unwarranted here when these risks are legitimately present.

Further, is this suggesting that all criminals be released prior to their trial without posting bail? That bail should always be set at a limit that an individual can pay, regardless of the severity of the crime or risk of flight? Or just that the rich shouldn't be able to get out on bail, even if it is very likely that they will show up for trial? Whatever the answer, I think it has little to do with the presumption of innocence. The presumption of innocence does not mean you are treated as innocent when there is probable cause for the arrest and substantial evidence that could lead to a guilty verdict. The presumption of innocence is more aptly a trial evidentiary presumption, and should not be applied too literally outside this context. After all, searches and seizures of evidence hardly presume innocence, but are necessary to run an effective criminal justice system.

The conditions for this particular defendant, who was falsely accused, do seem bad: he was incarcerated for eight months and only at trial did his accusers break down and admit the truth. But every defendant has a right to a speedy trial, and (without knowing the exact details, since they are not given in the post or the news story) this defendant must have waived this right to be incarcerated for so long. Perhaps the system too often encourages waiver of time, but this doesn't mean he could not have exercised his right.

All in all, the system did not fail here insofar as bail and custody before trial are concerned. Perhaps new technologies will obviate the need for this incentive to show up for trial, and then everyone can go free, but for now bail looks like as good a method as any. I think the question presented suffers from severe hindsight bias, but it is good to keep these issues on the table. With more facts, perhaps there is an issue about unreasonable bail amounts that could be addressed through the Eighth Amendment, or similar state constitutional provisions.

Thursday, March 04, 2004

More on the Fourth

Perhaps we should have sympathy for Dahlia Lithwick this week for her column, but I'm still on the fence. Here's one portion I am unsure about:

The slippery-slope arguments—that this leads to a police state in which people are harassed for doing nothing—won't really fly, although I guarantee that you'll hear more and more of them in the coming weeks.

Well, the counterargument to any slippery slope warning is that we don't have to go down the slope, and that the line is easy to draw. But here there is other language that makes the slope a little more worrisome:

It would be easier to credit the Cato and ACLU arguments if we didn't already have to hand over our ID to borrow a library book, obtain a credit card, drive a car, rent videos, obtain medical treatment, or get onto a plane.

But say we did have to hand over our ID to the police. It would then be harder to argue that we shouldn't have to tell the police where we are going (another often voluntarily disclosed fact), where we've been, where we live, who we hang out with, and the list could go on. None of these are particularly invasive, but we are balancing this against the investigative power of the state: how long can the police detain you against your will (seizure) and how much evidence can they gather without probable cause? Yes, there was evidence that Hiibel hit a woman and had been drinking, there was no probable cause for an arrest. At some point we not only run afoul of the Fourth Amendment, but start to run into Fifth Amendment self-incrimination problems.

Another point often overlooked in Fourth Amendment jurisprudence is popular opinion: the police are not only detered by courts, but by the citizens. If popular support can protect an individual liberty, then so be it. In fact, that may even counsel for allowing this kind of brief seizure under the Fourth Amendment, leaving the courts as protectors against abuse, not merely use, of asking for ID.

To give Lithwick some credit though, this is a case where there was reasonable suspicion and all they wanted to know was who this guy was. Perhaps we are approaching a line where the right to privacy is not being protected (for the benefit of all), but only the right to be a criminal.

Not So Fast...

Jeremy Blachman over at Crescat Sententia posts here about how Lionel Richie's wife spends way too much money. Read his post to find out how the other half lives. He then says that "[t]his is a really, really, really good argument for high marginal tax rates." I don't know about that. It sounds from his post that the system is working correctly: filthy rich people are blowing their money on stupid stuff, thus putting the money back into the economy, and giving people jobs while they're at it. I don't think on its face it means that this money would be better used if it were taken from them, then filtered through our notoriously wasteful government.

Wednesday, March 03, 2004

Iraq Now

From Iraq Now blog, a letter the author says he received from a Swiss national:

I fell sorry for any loss or injury (Coalition or Iraqi), but you have also to accept that the majority of the world sees any US casualty a step closer to get rid of Bush (polls showed him as major danger to world peace).

And his post:

Any other non-U.S. readers really feel this callous toward U.S. casualties?

Or is the common existence of such views really just a paranoid fantasy among U.S. conservatives?

20 for the Bash Man

Paying Defendants

A woman has filed suit against two men accused of participating in the 9-11 terrorist attacks. AP story here. One of the men was cleared of over 3,000 counts of accessory to murder last month. The following part is what interests me:

Andreas Schulz, an Berlin-based attorney who represented U.S. relatives of victims in the trials, said his client is seeking $5,750 in damages from Abdelghani Mzoudi -- the same amount he received from the German government as compensation for time spent in prison.

First, I don't like the idea of compensating defendants acquitted of crimes. It seems like it would be a substantial burden on the state, and absent abuses, the state has a good reason to restrain this person's liberty and not have to pay them directly. On the other hand, this could encourage the innocent to go to trial rather than entering plea bargains. All too often defendants plead guilty and get out of jail earler than if they go to trial (in other words, being sentenced to "time served" instead of staying in custody through the lengthy trial time). Still, on balance I think this unnecessary for precisely my second reason: people who are "probably" guilty would be compensated for a jury finding reasonable doubt. This seems a little unfair to victims of crime, and may actually influence jury decisions.

Perhaps an alternative would be for a jury to return a special verdict of "not guilty plus costs" if they find the evidence particularly weak. It would be an interesting experiment if implemented in the U.S.

Skewed Analysis of Religion

Contrary to the opinion that seems to predominate the blogosphere, Marci A. Hamilton of FindLaw has this piece explaining why Locke v. Davey was correctly decided. However, I find her article completely unpersuasive and self-contradictory.

The statute at issue in Locke was a generally applicable scholarship based on academic merit and financial need. The Court cited the relevant portions:

To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score of 27 or better on the American College Test. §§250-80-020(12)(a)--(d). The student's family income must be less than 135% of the State's median. §250-80-020(12)(e).

The Court goes on to explain that it is not applicable to religious training. Hamilton seems to justify this on the oft invoked mantra of "separation of church and state," but explains this in a way I do not find persuasive. She agrees with the Court not applying strict scrutiny: "There are few instances where strict scrutiny is justified under the Free Exercise Clause. In Free Exercise challenges, hostility to religion must be shown for strict scrutiny to apply," (emphasis added). The statute explicitly excludes religious education from a generally applicable scholarship, and while "hostility" may be a strong word, certainly treats religion differently and denies a benefit to those seeking religious education. When on the face of a statute religion is treated differently, much like when race is treated differently, strict scrutiny should certainly apply.

Another technical oddity is that Hamilton agrees "strict scrutiny is not justified in the absence of hostility." But this leaves open the possibility that a law may be upheld if there is evidence of hostility (i.e., if it meets strict scrutiny). Certainly Hamilton cannot agree with this. What she must mean is that hostility will always fail strict scrutiny analysis, but then this does not answer why it should not be applied in the first instance.

Hamilton then goes on to espouse an equality principle: "Here is its sensible framework: General, neutral laws will be applied equally to all, including religious believers . . . ." But obviously not when equality might mean giving a benefit to a religion, even when that benefit is distributed to all others equally. I find this brief mention of equality to be out of place here.

Then comes the kicker:

[E]quality principles are insufficient to explain the proper relationship between church and state. The Establishment Clause is always there. Preventing the establishment of a state religion is quite clearly a permissible goal under Locke. That was a principle in danger of slipping away in the midst of this era's equality talk, but it is obviously not a principle the Supreme Court has forgotten.

The princlple Hamilton seemingly arrives at is that the government can do whatever it wants to religion, as long as its motive is not "hate." But what is hate in this context? On the one hand we have the kind of animus that everyone agrees is wrong: trying to end a certain religion's practice. But systematically excluding religion from any generally applicable law? I think Hamilton mischaracterizes Establishment as any implicit acceptance of a religion's practice, regardless of whether it is generally applicable or not. Saying that the Establishment clause trumps both Equal Protection clauses, the Free Exercise clause, and any other constitutional priciple ignores the priciple of ballance that the framers' certainly contemplated. The exclusion of religion from government is not the only constitutional priciple worth protecting here, and when we single out one group from equal protection that is explicitly mentioned in the Constitution as having a right to Free Exercise, then we have a large problem.

The Oscar Conspiracy

73*

It's looking bleaker for Barry, as the S.F. Chronicle has reported (albeit from an anonymous source) that Bonds was given steroids as far back as 2001. As a Giants fan, all I can do is shake my head and hope it's somehow all a mistake.

Those Wacky Copyright Laws

Many people probably already know this, but for those who don't, here's a piece of copyright trivia:

Happy Birthday, originally penned by two Kentucky kindergarten teachers in the late 19th century, remains a protected and highly profitable copyright in the intellectual property portfolio of AOL/TimeWarner. Purchased by the company in 1988 for an estimated $ 25 million, it produces revenues estimated at $ 2 million per year. Under the Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827, for better or for worse, the song will not enter the public domain until at least the year 2030.

Bonneville Int'l Corp. v. Peters, 347 F.3d 485, 487 n.1 (2003). This would be all the more interesting if there was a pre-1978 grant by the original author that could fall under the termination of transfer provisions of 17 U.S.C. § 304(c) and (d), but this probably won't happen.

Monday, March 01, 2004

The Role of the Defense Attorney

I used to think that I could be a public defender. That all changed after I spent a summer working at the L.A. City Attorney's office, watching trials daily, and saw justice being churned out like so much raw beef. I draw this parallel because we may like what comes out of the criminal justice system (some more than others) but we don't like the process that much. I found public defenders (generally, with some individual exceptions) to be zealots--hearts bleeding over ever minor denial of petty dignity their clients must suffer, whether it be a hangnail or a coerced identification. I didn't think this was the life for me because I couldn't have such passion for a job I found so repugnant to the search for truth.

Still, I guess some of those adversarial feelings linger, and I have reconsidered my options. For trial advocacy, we were assigned readings on the role of the defense attorney in the criminal system. Clarence Darrow argued (in what would surely be impermissible today) for the greater humanity at stake in criminal trials. For famous examples, his closings in the Sweet trials, a brilliant oratory on race relations and the greater good of law and humanity. Here is the last portion of his closing from the second Sweet trial:

I know the Negro race has a long road to go. I believe the life of the Negro race has been a life of tragedy, of injustice, of oppression. The law has made him equal, but man has not. And, after all, the last analysis is, what has man done?--and not what has the law done? I know there is a long road ahead of him, before he can take the place which I believe he should take. I know that before him there is suffering, sorrow, tribulation and death among the blacks, and perhaps the whites. I am sorry. I would do what I could to avert it. I would advise patience; I would advise toleration; I would advise understanding; I would advise all of those things which are necessary for men who live together.

Gentlemen, what do you think is your duty in this case? I have watched, day after day, these black, tense faces that have crowded this court. These black faces that now are looking to you twelve whites, feeling that the hopes and fears of a race are in your keeping.

This case is about to end, gentlemen. To them, it is life. Not one of their color sits on this jury. Their fate is in the hands of twelve whites. Their eyes are fixed on you, their hearts go out to you, and their hopes hang on your verdict.

This is all. I ask you, on behalf of this defendant, on behalf of these helpless ones who turn to you, and more than that,--on behalf of this great state, and this great city which must face this problem, and face it fairly,--I ask you, in the name of progress and of the human race, to return a verdict of not guilty in this case!

Perhaps I have shortchanged the defense attorney's role, and although there may be only a few Darrows in the world, I think my ultimate assessment of the criminal system will have to take into account the role of the defense attorney on a level beyond a mere adversary, but as an integral part of the law's dignity. Admittedly, this will be a tough view to maintain in the trenches.

Gibson's Lethal Weapon

Probably everyone thought The Passion of the Christ was disturbing, but I'm guessing that this reaction was atypical:

A middle-aged woman died of an apparent heart attack on Wednesday while watching the climactic crucifixion scene in "The Passion of the Christ" at a morning showing in Wichita, Kansas, a television station reported.

Supremes to Hear Prison Segregation Case

Via How Appealing, the Supreme Court will hear a case involving racial segregation in California prisons. See Reuters story here. Apparently, all prisoners are segregated by race for the first two months, and then everyone goes into the general population. I think prisons generally get much deference on equal protection issues, and if they can articulate a clear safety concern, then this may be a tough case. My only guess is that it may reduce violence between rival mono-racial gangs of different races, though does nothing to deter violence between gangs of the same race. If I were a betting man, I'd predict a close split with the majority harping on one of these points while the dissent stressing the other. Tough call.

Personally, I didn't know that the prison system did this. I don't think the exact same procedure is used in county jails, at least not in L.A. Everyone goes into the same general population, but certain prisoners are separated out for safety reasons. These prisoners are "green lighters" (informants marked for death or great bodily harm), insane prisoners, and, interestingly, Asians.